Who said that?! English court orders injunctive relief against persons unknown
It is possible to set up anonymous websites with ease – but much harder to identify who is behind them. When such websites publish defamatory statements about you or your business, this can make life very difficult, particularly if you rely on clients finding you via online searches.
The High Court has recently granted an injunction and damages in defamation in such a situation. In so doing, it confirmed that it was legitimate for a claimant (who notwithstanding service of a Norwich Pharmacal order had failed to obtain identifying information about the owner/operator of an offending website) to proceed against the defendants as "the persons unknown, responsible for the operation and publication of the website www.solicitorsfromhelluk.com".
The claimant in Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation and Publication of the Website www.solicitorsfromhelluk.com was a firm of solicitors that had previously represented claimants in an earlier successful action against a very similar website: "www.solicitorsfromhell.co.uk". That website had been successfully shut down and its owner and administrator (who could be identified as Mr Rick Kordowski) sued. The claimant had later become aware of another website, solicitorsfromhell.com, on which had been published, in the form of a complaint from an anonymous "client", allegations that Brett Wilson LLP had overcharged, harassed and threatened legal action against them.
The publications were held to be highly defamatory and the defendant(s) to be editors of the defamatory material. However, the claimant was unable to identify the owner or administrator of the website on this occasion. The "WHOIS" website (an online registry which confirms to whom domains are registered) listed the website owner as "Anonymous Speech", an online business which offers proxy services and ignores court orders on behalf of its customers who do not wish to be traced. Anonymous Speech did not respond to the claimant's attempts to contact them.
Being unable to identify the defendant(s) did not stop the claimant from successfully obtaining an injunction. The court made it clear, however, that in order to decide whether it is right to hear and dispose of a claimant's application in the absence of the defendants, there are a number of steps that must first be followed. Under the Human Rights Act, where the defendant is not present in proceedings, a court can only grant relief that might affect freedom of expression once the claimant has taken all reasonable steps to notify the defendant or where there are other compelling reasons for relief.
The court found that Mr Wilson had indeed taken all reasonable steps to notify the defendants and was satisfied not only that the defendants had had notice, but that they had also had adequate time to respond. In the circumstances, the court concluded that the defendants had deliberately avoided engaging with the legal process and there was no reason not to proceed against them in their absence.
It is of course very difficult to see how the damages and injunction awarded by the court will be enforced – but that is not the point. The defamatory statements had generated significant bad publicity for Brett Wilson LLP, who were able to give examples of clients who had taken their business elsewhere as a result of the allegations. A court judgment vindicating them, along with other online commentary on it, will hopefully assist in restoring their reputation.
For companies who are the victims of similar anonymous online defamatory statements, it is encouraging to know that the court will take a pragmatic approach to assist in such situations.